constitutional reforms in taiwan in tbe1990s

Constitutional Refonns in Taiwan in thel990s 75

Constitutional Reforms in Taiwan in tbe1990s

Dennis Te-chung Tang

Professor of Law, National Taiwan UniversitySenior Fellow, Academia Sinica

128 Yen liou Yuan Rd. Sec. 2, Taipei. 11529. Taiwandennis@siojca edll tw

76 Constitutional Reforms in Taiwan in thel990s

TABLE OF CONTENTS

INTRODUCTION

I. ROC CONSTITUTION IN COMPARATIVE PERSPECTIVE

I. I TRACES OF DEMARCATION BETWEEN POLITICAL RIGHTS AND

GOVERNING POWERS: MONOPOLY OF CONSTITUTIONAL REVISION1.2 HORIZONTAL SEPARATION OF POWERS AMONG FIVE BRANCHES: A

MODIFIED PARLIAMENTARY SYSTEM

1.3 VERTICAL SEPARATION OF POWERS: ELASTIC LOCAL SELFGOVERNANCE

1.4 CENTRALIZED AND ABSTRACT JUDICIAL REVIEW

II. CONSTITUTIONAL TUTELAGE UNDER AUTHORITARIANISM

II. I INITIAL CRISIS AND JUDICIAL SOLUTION

II.2 CONSTITUTIONAL STRUCTURE UNDER "TEMPORARY PROVISIONS":SEMI-PRESIDENTIALISM

II.3 TURNING CRISIS INTO ASPIRATION

III. CONSTITUTIONAL TRANSFORMATION SINCE 1990

III. I ADDITIONAL ARTICLES OF 1991

III.2 ADDITIONAL ARTICLES OF 1992



IV. REVIEW AND PROSPECT

IV.I DIRECT ELECTION OF THE PRESIDENT HAS ENORMOUS IMPACT ONCONSTITUTIONAL FRAMEWORK

IV.2 ABROGATION OF TAIWAN PROVINCE IN THE WAKE OF POPULAR

ELECTION OF THE GOVERNOR HAS PERPLEXED GOVERNMENT

REORGANIZATION

IV.3 DIRECT DEMOCRACY AS SOLUTION TO CONSTITUTIONAL

MONOPOLY IS WORTH A TRY

..


Introduction

This decade has seen the rise of a worldwide trend towardsconstitutional reform or reconstruction as countries struggle to cope withrapid social and political change.! This article examines the Taiwaneseexperience of amending their constitution to consolidate democracy.

Section I introduces the constitution of the Republic of China (ROC)of 1947 from a comparative perspective in order to provide a generalbackground. The roots of reforms conducted in the nineties lie in theunique features of the Constitution. Section II traces the rise and fall ofthe authoritarianism and its impact on constitutionalism. Section IIIanalyzes in detail the evolution of the constitutional structure embodied ina series of constitutional amendments in the '90s, namely the AdditionalArticles of 1991, 1992, 1994 and 1997 respectively. Section IVsynthesizes lessons from the recent experiences by commenting on threecritical moves, including the popular election of the President, the popularelection of the governor of Taiwan Province, and the prospectiveconstitutionalization of plebiscite.

I. ROC Constitution in Comparison

Under the heading of "Constitutional Reform", Taiwan has initiated aseries of constitutional amendments since 1990. Before exploring theseAmendments, an introduction to the Constitution is necessary.

The Constitution of the RepUblic of China (hereinnfter referred to as"the Constitution") was enacted on December 25, 1946 and came intoforce one year after its enactment. The Constitution contains 14 Chaptersand a total of 175 articles. Its distinctive features are as follows:

I See, e.g., ALBERT P. BLAUSTEIN, FRAMING THE MODERN CONSTITUTION:" A

CHECKLIST v (1993); PARLIAMENTARY VERSUS PRESIDENTIAL GOVERNMENT 1

(Arend Lijphart ed. 1995).

78 Constitutional Reforms in Taiwan in tbe1990s

1.1 TRACES OF DEMARCATION BETWEEN POLITICALRIGHTS AND GOVERNING POWERS: MONOPOLY OFCONSTITUTION REVISION

On the surface, the Constitution is based on the teachings of Dr. SunYat-sen (1866-1925)', the founding father of both the Republic and theKuomintang (KMT, or Nationalist Party).' The Constitution, in fact, as itappears in its current version, is the result of a political compromisereached between the KMT and the Chinese Communist Party in 1946'

One of the essential theories of Sun is the demarcation between"political rights" (Cheng Chuan) and "governing powers" (Chi Chuan).Political rights, which include election, recall, initiative, and referendum,should be given into the hands of people; "this political right is popularsovereignty. "S Governing power is the power of government and shouldbe exercised by the five separate branches (Yuans). At the central level,

2 Born near Canton to a peasant family, Sun received secondary and advancededucation in western medicine in Hawaii and Hong Kong. Before the WuchangRevolution on October 10,1911, he had already led the Nationalist Party in tenunsuccessful armed uprisings.

3 The Preamble of the Constitution says:

"The National Constituent Assembly of the Republic of China, by virtue ofthe mandate received from the people, in accordance with the teaching bequeathedby Dr. Sun Vat-sen in founding the Republic of China, and in order to consolidatethe authority of the State, safeguard the rights of the people, ensure socialtranquility, and promote the welfare of the people, do hereby adopt thisConstitution to be promulgated throughout the land for faithful and pel]letualobservance by one and all."

4 For the history of the Constitution, see, J. FA. A COMPARATIVE STUDY OFJUDICIAL REVIEW UNDER NATIONALIST CHINESE AND AMERICAN CONSTITUTIONALLAW 45-66 (1980) (Occasional Paper/Reprints Series in Contemporary AsianStudies, Sch. of Law, Univ. of Maryland); C. LIN, AN ANALVTICAL STUDY ON THECONSTITUTION OF THE REpUBLIC OF CHINA (CHUNG HWA MIN Kuo HSIEN FA SHIHLUN) 108-121 (1979).

, Y. SUN, SAN MIN CHU I 140-141 (F. PRICE trans. 10" ed. 1985).


Sun- would entrust the exercise of these four political rights to theNational Assembly, to which the central government would beresponsible. At the local level, people would directly exercise these fourpolitical rights in organizing their own government; hence, the so-called"local self-governance".

The elite framers of the Constitution, however, rejected thedemarcation doctrine in 1946, as they felt they could not assure that thedelegates of the National Assembly would, in Sun's words', "onlyperform their duties without usurping the powers of the people." Theythus created a "nominal" or HamorphollS" National Assembly whosefunctions were first substantially curtailed. The Assembly is only entitled'to elect and recall the President and the Vice President of the Republic;and to exercise initiative and referendum when these two political rightshave been exercised in more than one half of the counties and cities of thewhole nation. I. Yet the Constitution exclusively entrusts the NationalAssembly with the power to revise the ConstitutionII as well as to

• See, Y. SUN, CHIEN Kuo TA KANG (FUNDAMENTALS OF NATIONAL

RECONSTRUCTION), Art. 24.

, ? of Dr. Sun Yat-Sen, Vol. II, 179 (KMT Commission of Party History,August 1981).

8 Art. 27 of the Constitution.

9 The National Assembly was empowered to elect most of, and to recall all,government officials, under Article 32 of the "Draft Constitution of Double Five"issued by the Nationalist Government on May 5, 1936.

16 Ever since 1949 when the Chinese Mainland was lost, this condition hasbeen impossible to meet.

II Art. 174 of the Constitution prescribes:

Amendments to the Constitution shall be made in accordance with one of thefollowing procedures:

1. Upon the proposal of one-fifth of the total number of the delegates to theNational Assembly and by a resolution of three-fourths of the delegates presentat a meeting having a quorum of two-thirds of the entire Assembly, theConstitution may be amended.

2. Upon the proposal of one-fourth of the members of the Legislative Yuanand by a resolution of the three-fourths of the members present at a mee~ing

80 Constitutional Refonns in Taiwan in theJ990s

approve" the alteration of national territory. As the Assembly is supposedto meet once every six years, normally in order to elect the president, andcan only be convened by the President (of the Republic) or the presidentof the Legislative Yuan, such a monopoly of constitution revision doesnot appear to be a serious threat to constitutional democracy. I3

Nevertheless, over time, the monopoly has become a thorny problem.

1.2 Horizontal Separation of Powers among Five

Branches: A Modified Parliamentary System

Leaving the controversial demarcation doctrine aside, theConstitution also embraces the doctrine of separation of powers. It is,however, a separation among five branches, instead of three, at the centralgovernment level."

1. Executive Yuan. The Executive Yuan is "the highest administrativeorgan of the state."" There is an Executive Yuan Council (commonlyviewed as the counterpart of the Cabinet) composed of the President andVice President of the Executive Yuan (premier and Vice Premier),Ministers, Chairmen of Commissions, and Ministers without Portfolio.

having a quorum of three-fourths of the members of the Yuan, an amendmentmay be drawn up and submitted to the National Assembly by way of referendum.Such a proposed amendment to the Constitution shall be publicly published half ayear before the National Assembly convenes. (Emphasis added)

12 Art. 4 of the Constitution prescribes that "[t]he territory of the Republic ofChina according to its original boundaries shall not be altered except byresolution of the National assembly."

13 Article 2 of the Constitution reads: U[t]he sovereignty of the Republic ofChina shall reside in the whole body of citizens."

14 At the local government level, it's a separation of powers between twobranches only, namely the executive and the legislative. Unlike federal countries,a local government does not have its own courts. In addition, the SupervisoryYuan and Examination Yuan exercise their duties throughout the whole nationwith no separation of powers between central and local government.

IS Art. 53, ROC Constitution.

Constitutional Refonns in Taiwan in the19905 81

Bills on important malters, such as proposed laws, budgets, declarationsof etat de siege, amnesty, declarations of war, conclusions of peace andtreaties, as well as malters of common concern to all the ministries andcommissions, are considered in the Council before they are sent to theLegislative Yuan."

The Premier is nominated and, upon approval by the LegislativeYuan, appointed by the President of the Republic." Other members of theExecutive Yuan Council are appointed by the President of the Republicupon the recommendation of the Premier." None of the members of theExecutive Yuan can simultaneously hold a membership in the LegislativeYuan. The Premier does not have the power to dissolve the LegislativeYuan, nor can the Legislative Yuan remove the cabinet by a vote of nonconfidence. I will elaborate on the relationship between the ExecutiveYuan and the Legislative Yuan later.

2. Legislative Yuan. The Legislative Yuan is "the highest legislativeorgan of the state exercising the legislative power on behalf of thepeople."I' It is composed of members directly elected from provinces,Mongolian Leagues, Tibet, and ethnic groups in frontier regions, as wellas by Chinese citizens residing abroad (known as "overseas Chinese")and various occupational groups." Members serve a term of three years

16 Art. 58, ROC Constitution. The President of the Executive Y an has theright to veto the majority vote of the Council, and the right to make final decisions.See §5, Rules for the Meeting of the Executive Yuan Council (Shing Cheng YuanHway Yi Ouay Ther).

17 There tS no explicit provision governing the dismissal of the Premier. Inpractice, the premier and his cabinet members usually resign when the President ofthe Republic is re-elected or changed. On October 13. 1995 the Council of GrandJustices rendered Interpretation No. 387 which held that the Premier with allcabinet members should resign before the first meeting of every re-electedLegislative Yuan

llArt. 56. ROC Const.

" Art. 62, ROC Const.

20 Art. 64(1), ROC Const. "The minimum quota for women to be electedunder all the items of the precedlOg paragraph shall be prescribed by law." Id. atArt. 64(2).

82 Constitutional Reforms in Taiwan in the 19905

and may be re-elected. 21 No member may concurrently hold a governmentpost" Two sessions are held each year: February to May, and Septemberto December." The Presidents of the various Yuan concerned may bepresent at the meetings of the Legislative Yuan to present their views."

3. Judicial Yuan. The Judicial Yuan is "the highest judicial organ ofthe state" responsible for the trying of civil, criminal, and administrativecases and disciplinary punishment of public employees." Yet the JudicialYuan has never been a court as in fact various statutes" have assignedthese jurisdictions to variant subordinate courts." Moreover, the JudicialYuan shall set up a certain number of Grand Justices to interpret theConstitution and to unify the interpretations of statutes and administrativeregulations." The President, Vice President and Grand Justices of theJudicial Yuan are nominated and, upon confinnation by the Control Yuan,appointed by the President of the Republic." Judges are nonpartisan, and

" Art. 65, ROC Canst.

22 Art. 75, ROC Const. A Member of the Legislative Yuan is deemed resignedwhen he takes a governmental post. Council of Grand Justices, Interpretation[hereinafter "Interpretation") No. I. (Jan. 6, 1939).

A "government post" includes any position, civil or military, which receivescompensation from the nation, as well as a Member of National Assembly. See,Interpretation Nos. 24 (Sept. 3, 1953) & 30 (Jan. 15, 1954).

23 Art. 68, ROC Const. A session may be prolonged, if necessary. ld.

24 Art. 71, ROC Const. In practice, except for the Premier and his cabinetmembers, the Presidents of other Yuans only send their chief of staff (secretarygeneral) to present their views.

2S Art. 77, ROC Canst.

26 I.e., the Organic ~ct of Courts, the Organic Act of Administrative Court,

and the Organic Act of Committee on the Discipline of Civil Service.

27 Whether the Judicial Yuan should be transformed into a real supreme courthas been ardently debated in the Judicial Reform Committee. See e.g., JUDICIALYUAN, PROCEEDINGS OF JUDICIAL REFORM COMMITTEE, VOL. II, 652-662 (1996).

1I Art. 78, ROC Canst.

29 Art. 79(1), ROC Canst.

The relationship between the Council of Grand Justices and the JudicialYuan is also ambiguous, as the President of the Judicial Yuan has never served as

-

Constirutional Refonns in Taiwan in thel990s 83

bold office for life unless found guilty of a criminal offense, subjected todisciplinary action by the Control Yuan, or declared to be underinterdiction.3O

4. Examination Than. The Examination Yuan is "the bighestexamination organ of the state" and is responsible for "matters relating toexamination, appointment, official grading, service rating, salary scales,promotion and transfer, security of tenure, commendation, pension for thedeceased's family, retirement, and old-age pension (of publicemployees). "31 The President, Vice President, and Members of theExamination Yuan are nominated and, upon confirmation by the ControlYuan, appointed by the President of the Republic. Tbe Members arenonpartisan and exercise their function independently, in accordance withlaw.

5. Control Yuan. The Control Yuan is "the bighest supervisory organof the state" possessing the power of consent, impeachment, censure, andauditing." Members of the Control Yuan are elected by Provincial andMunicipal Assemblies, the local councils of Mongolia and Tibet, andChinese citizens residing abroad. The President and Vice President areelected from among the members. 33 Members serve a term of six yearsand may be re-elected. 34 The impeachment and censure powers cover thePresident and Vice-President of the Republic, officials under thejurisdiction of the Executive Yuan and various local governments, andofficials under the jurisdictions of the Examination Yuan and the JudicialYuan (including judges)." The Control Yuan may also pass a resolution

Grand Justice at the same time.

JO Art. 80, 81, ROC Const.

" Art. 83, ROC Canst.

J2 Art. 90, ROC Canst.

33 Art. 91, ROC Canst.

" Id. Art. 93.

" See, Art. 98, 99, 100, ROC Canst. The Members of the National Assembly,Legislative Yuan, and Provincial Assembly are not subject to the supervision ofthe Control Yuan. See, Interpretations Nos. 14 (March 21, 1953) & 33 (April 2,1954).

84 Constitutional Refonns in Taiwan in thel990s

proposed by a relevant commission and transmitted to the Executive Yuanfor correcting a particular measure or a general policy. This may put theExecutive Yuan in a difficult position, as in practice it is unclear what thedistinction between the supervisory powers of the Control Yuan and theLegislative Yuan is when it concerns a policy of the Executive Yuan.

President of the Republic. The President is the "Chief of the State",representing the Republic of China in foreign relations.J6 The President isthe supreme commander of the army, navy, and air force of the country.37The President must promulgate laws and issue mandates with thecountersignature of the Premier or with the countersignatures of both thePremier and the ministers or chairmen of the commissions concerned."The President may, in accordance with law, declare erat de siege with theapproval of, or subject to confirmation by, the Legislative Yuan.39 In caseof disputes involving two or more Yuans, the President may call ameeting of the Presidents of the involved Yuans to work out a solution,except as otherwise provided in the Constitution.40

Despite these honorary powers, the President does have a crucial roleto play when the Premier and the Legislative Yuan are in dispute. ThePresidem may, by approving (or disapproving) the reconsiderationinitiative proposed by the Premier, change the symmetry of these tworivals. Article 57 of the Constitution fully lays out the distinguishingcharacteristics of a "modified parliamentary system." It reads as follow:

l6 Art. 35, ROC Cons!.

37 Art. 36, ROC Const. In practice. the President exercises this commandingpower through the joint chiefs of staff.

38 Art. 37, ROC Cons!.

39 Art. 39, ROC Const. According to § I of the Martial Law, there are onlytwo reasons for declaring an etat de siege: war or rebellion.

In addition. the Constitution (Art. 43) confers upon the President anotheremergency power -- issuance of "emergency orders." However, this power onlyexists in theory as the Law on Emergency Orders has not been enacted.

40 Art. 44, ROC Canst. It is commonly thought that this dispute-solvingmechanism is limited to political issues. If the disputed issue is a legal one, judicialreview should be employed. See G. LIN, supra note ?, at 205.

Constitutional Reforms in Taiwan in thel990s 85

The Executive Yuan shall be responsible to the LegislativeYuan in accordance with the following provisions:I. The Executive Yuan has the duty to present to theLegislative Yuan a statement of its administrative policiesand a report on its administration. While the LegislativeYuan is in session, Members of the Legislative Yuan shallhave the right to question the Premier and the Ministersand Chairmen ofCommissions of the Executive Yuan.2. If the Legislative Yuan does not concur with anyparticular major policy of the Executive Yuan, it may byresolution request the Executive Yuan to alter such apolicy. With respect to such a resolution, the ExecutiveYuan may, with the approval of the President of theRepublic, ask the Legislative Yuan for reconsideration. If,after reconsideration, two-thirds of the Members of theLegislative Yuan present at the meeting uphold theoriginal resolution, the Premier shall either abide by thesame or resign.3. If the Executive Yuan deems a resolution on a statutory,budgetary, or treaty bill passed by the Legislative Yuandifficult of execution, it may, with the approval of thePresident of the Republic and within ten days after itstransmission to the Executive Yuan, request theLegislative Yuan to reconsider the resolution. If afterreconsideration, two-thirds of the Members of theLegislative Yuan present at the meeting uphold theoriginal resolution, the Premier shall either abide by thesame or resign.

Such a system is indeed a subtle compromise of politicalaccountability and executive stability. In particular, there are two roundsof rivalry. The first round emphasizes accountability, while the secondround emphasizes stability. The whole process of contest can beillustrated by the following schematic:


I.I.Rivalry Begins

More than one-hal Vs.of the Members 0

the LY.

Premier &Less than one-half 0

the Members of theLY

I" Round: Accountability as Priority

More than one-halof the Members 0

the LY & DefeatsPresident of theRepublic(disapproving thereconsiderationinitiative by thePremier)OrMore than one-hal.of the Members 0 Isthe LY. Defeated

By

2"" Round: Stability as Priority

Two-thirds of the DefeatsMembers of the LY.

Premier &Less than one-half 0

the Members of theLY

President of theRepublic (approvingthe reconsiderationinitiative by thePremier) &Premier &Less than one-half 0

the Members of theLY.

Premier &Less than one-third 0

the Members of theLY.

Constinllional Reforms in Taiwan in thel990s 87

It seems fair to say that the checks and balances among the fivebranches (five Yuans) , not including the President and the NationalAssembly, is much more complicated than those that would be foundunder a system of separation of power among just three branches.'! Sucha complicated constitutional framework is, obviously, hard to operatewithout the leadership of a stable ruling party. This might explain why theframers insisted a modified parliamentary system, a weak form ofparliamentarism with high stability at the cost of low efficiency.42

1.3 VERTICAL SEPARATION OF POWERS AND LOCALSELF-GOVERNANCE

Generally speaking, China has been a unitary country since the ChingDynasty (B.C. 246-B.C. 207). Yet, for such a huge country therelationship between central and local governments" has been a recurrentissue in politics. The Constitution attempts to offer some guidance bydistinguishing subject matters into four categories.1) The subject-matters which shall be legislated and executed by thecentral government, such as foreign affairs, national defense, the judiciary,demarcation of national, provincial, and county taxes, foreign trade policy,etc.44

2) The subject-matters which shall be legislated by the centralgovernment, yet. may be delegated to the provincial or countygovernments for execution, such as The General Principles of Provincialand County Self-Governance, the educational system, eminent domain,

41 See Dennis Tang, A Critical Review oj the Council oj Grand Justices'Interpretations oj the Separation-oj-Powers Doctrine, in DENNIS T. TANG,SEPARATION OF POWERS REVISITED 127, 266 (Figure 2) (1998) for illustr'lion.

42 It is so because a Premier who obtains no majority yet more than one-thirdof the legislators' support can hold his post without passing laws or budgets.

4) By "local governments", as commonly denoted in Chinese, I mean· thegovernment of provinces and the lower levels of government, such as countygovernments .

.. Art. 107, ROC Cons!.

88 Constitutional Refonns in Taiwan in the1990s

the police system, public health, etc"3) The subject matters which shall be legislated by the provincialgovernment, yet may be delegated to county governments for execution,such as provincial education, public health, industry, and communications,

etc.46

4) The subject matters which shall be legislated and executed by countygovernments, such as county education, public health, industry andcommunications, etc.47

Any matter not enumerated in these categories falls within thejurisdiction of the Central government if it is national in nature, fallswithin that of the Province if it is provincial in nature, or falls within thatof the County if it is local in nature. In case of dispute, the matter shouldbe settled by the Legislative Yuan, rather than through the judicial reviewprocess of the Judicial Yuan."

The local self-governance envisioned by the Constitution was notrealized because the Chinese Mainland fell into the hands of Communistsbefore the "Act Containing General Principles for Province and CountySelf-Governance" could make it through the legislative process.

1.4 Centralized and Abstract Judicial Review

The Constitution embraces a full-fledge judicial review. Article 171,Section I of the Constitution prescribes: "[I]aws49 that [are] in conflict

" ld. Art. 108.

.. ld. Art. 109.

471d. Art. 110. These provisions were criticized as being blindly modeledafter the federal system (especially that of Germany) and ignoring the Chinesepolitical tradition completely. See G. LIN, supra note, at 310-314.

.. ld. Art. Ill.

49 The term "laws" used in the Constitution, according to Article 170 of the

Constitution, means a legislative bill that has been passed by the LegislativeYuan (the ROC legislature) and promulgated by the President of the Republic.

ConslitutionaJ Reforms in Taiwan in tbel990s 89

with the Constitution shall be null and void.·'" Section 2 of the sameArticle goes further: "[w]hen doubt arises as to whether or not a law is inconflict with the Constitution, interpretation thereon shall be made by theJudicial Yuan.· Article 78 of the Constitution reiterates that "[t]heJudicial Yuan shall interpret the Constitution and shall have the power tounify the interpretation of laws and regulations.· Section 2, Article 79 ofthe Constitution mandates that: "[t]he Judicial Yuan shall have a certainnumber of Grand Justices to take charge of the matters specified inArticle 78 of this Constitution, who shall be nominated and, with theconsent of the Control Yuan, appointed by the President of the Republic.·

The Organic Act of Judiciary Yuan of 1947 set up within the JudicialYuan a Council of Grand Justices (hereinafter the Council) consisting of17 Grand Justices to interpret the Constitution and to unify theinterpretations of laws and regulations'l Section 4 of the same Act fixedthe tenure for the Grand Justices at nine years. In practice, the GrandJustices have been customarily re-appointed, except those who are 65years or older, when their term of service ends."

The tenure of the 1st Council of Grand Justices began in August 1948and the first meeting of the Council convened on September 15, 1948 inNanjing, Mainland China. The Council resumed meeting in Taipei,Taiwan on April 14, 1952. The Council is now in its 6" term.

Partly because of the phrasing of relevant provisions in theConstitution", and partly because of the influence of Civil (Continental)

so Article 172 further prescribes: "[Administrative] Regulations that are inconflict with the Constitution or with laws shall be null and void."

" § 3, the Organic Act of Judiciary Yuan of 1947.

~2 After the latest revision in 1992. Section 2, Article 5 of the Organic Act ofthe Judicial Yuan reads: "The tenure of a Grand Justice is nine years per term"(emphasis added). It strongly suggests that a Grand Justice is entitled to be reappointed. Since 2003. however, the tenure of a Grand Justice will be fixed at 8years and no reappointment will be allowed. See Section 2, Article 5 of theAdditional Articles of the Constitution enacted in 1997.

53 Besides Article 77. Article 78 of the Constitution precisely prescribes thatwithin the Judicial Yuan there shall be a certain number of Grand Justices to


Law countries (such as Austria"), the power of judicial review has beenmonopolized by the Council of Grand Justices." Such a centralizedjudicial review means that ordinary courts need not, in practice, payattention to constitutionality issues."

A much more far-reaching characteristic ofjudicial review in Taiwanlies in the fact that the Council of Grand Justices may interpret theConstitution in the abstract, without subject to the "case or controversy"requirement. The abstract judicial review stands in sharp contrast to theordinary courts of both Case law and Civil law countries. Specifically, ifany agency of the central government or a local government, whenperforming its duties has doubts regarding the application of theConstitution, including doubts regarding whether or not the applicablestatute or regulation is in conflict with the Constitution, is entitled toapply for a "constitution interpretation" by the Council."

Since 1957 the legislators have tried to restrict the Council's"constitution interpretation" by imposing a special majority threshold.While a "uniform interpretation" requires only a quorum of one half of

within the Judicial Yuan there shall be a certain number of Grand Justices tointerpret the Constitution and to unify the interpretations of statutes andregulations.

S4 See, e.g., the Austrian Constitution of October I, 1920 (known asOktoberverfassung).

ss In contrast, in a decentralized judicial review system every court has the

power and duty to determine the constitutionality of statutes when it comesbefore it.

The monopoly has been weakened since 1995 when the Council inInterpretation No. 371 announced that judges of various grades of courts, when indoubt concerning the constitutionality of an applicable statute, may suspendproceedings and apply for an interpretation by the Council of Grand Justices.

S6 The worst situation happened during the 151 session of the Council ofGrand Justices (August I948 ....... August 1958) when only state organs, no

individuals, were allowed to apply for judicial review (constitutioninterpretations).

S7 § 4, the Act Governing the Council of Grand Justices of the Judicial Yuanof 1958; see also Grand Justices' Interpretation No.2 (Jan. 6, 1949).


the totals of Grand Justices and an accord of one half of those present, a"constitution interpretation" requires a quorum of three-fourths of thetotals of Grand Justices and an accord of three-fourths of those present."The threshold for passing a "constitution interpretation" was lowered in1993 to a quorum of two-thirds of the totals of Grand Justices currently inposition, and an accord of two-thirds of those present.'·

In Interpretation No. 18S the Council unequivocally announced that"the interpretations rendered by the Judicial Yuan shall have a bindingeffect on all agencies and people."" With such general binding effect, a"constitution interpretation" made by the Council can in fact only berepealed by either constitutional amendment, which requires a specialmajority" of the National Assembly, or re-interpretation by the Councilitself.

As of April I, 1999 the Council has rendered 479 decisions(officially known as "interpretations"). Among them, about 70% are"constitution interpretations", 30% are "uniform interpretations"; around480/0 are "abstract interpretations"J 52% are "concrete adjudication".[Table I ]shows the detailed breakdowns. Furthermore, the "constitution

interpretations" can be roughly divided into two categories: "separationof-powers interpretations" and "human rights interpretations". The first is

"Section 6, Organic Act of the Judicial Yuan of 1957; Section 13, the Act

Governing Council of Grand Justices of 1958.

The author believes that these restrictions are unconstitutional as they violatethe Doctrine of Separation of Powers by infringing on the core ofjudicial power.See Dennis Tang, A Critical Review ofthe Grand Justices' Interpretations oftheSeparation-aI-Powers Doctrine, in DENNIS T. TANG, SEPARATION OF POWERS

REVISITED 127, at 145 (1998).

S9 Sec. 14, subsec. I, the Act Governing Hearing of Cases by the GrandJustices of the Judicial Yuan.

60 JUDICIAL YUAN, COMPILAnON OF INTERPRETATIONS BY THE COUNCIL OF

GRAND JUSTICES, SUPPLEMENTS Vol. II, at 23 (2" ed. August 1991).

61 The Constitution (Art. 174) requires a resolution of three-fourths of thedelegates present at a meeting, having a quorum of two-thirds of the entireNational Assembly to pass amendments to the Constitution. See also supra note11.

92 Constitutional Reforms in Taiwan in the19905

primarily abstract; the second consists almost always of concreteadjudication. Though lbe percentage of "separation-of-powersinterpretations" of lbe total interpretations rendered has decreased overyears, "human rights interpretations" have been steadily increasing.[Table 2] shows lbe detailed breakdowns.

II. Constitutional Tutelage under

Authoritarianism

Soon after lbe enactment of the Constitution, a civil war broke up.When lbe first session of lbe first term of the National Assembly wasconvened in Nanjing in 1948, lbe "Temporary Provisions for the Durationof Mobilization to Crush lbe Communist Rebellion" (hereinafter referredto as "Temporary Provisions") were adopted·' Though lbe TemporaryProvisions were not supposed to be "formal" amendments to theConstitution, lbey have "frozen" lbe effects of some key provisions of lbeConstitution," and, furthermore, lbeir adoption followed lbe proceduresprescribed for amendments to lbe Constitution.64 Since 1949, when lbeCommunists overran lbe Chinese Mainland and lbe central government ofthe Republic of China withdrew to Taiwan, lbe Constitution has been in

62 The Nativnal Constituent Assembly. which enacted the Constitution in1947, was dissolved immediately after the enactment. Some three-fourths of the

delegates were re-elected as the delegates to this new National Assembly. Theirreluctance to formally amend the Constitution, which they had just producedsixteen months ago, is understandable. Several amendments to the TemporaryProvisions have been made in Taiwan since 1949.

63 Art. 10. Temporary Provisions, ROC Constitution: "The termination of the

period of Mobilization to suppress the Rebellion shall be declared by thePresident."

Art. II, Temporary Provisions, ROC Constitution: "Amendments to. orabrogation of, the Temporary Provisions shall be decided by resolutions of the

National Assembly."

.. I.e., Art. 174 • ROC Const. See supra note 11.

Constitutional Reforms in Taiwan in the 1990s 93

force only in the Taiwan area"

As the situation worsened, the Garrison Headquarters of Taiwandeclared an etat de siege on May 20, 1949.66 From then until July IS,1987, martial law was in force in Taiwan for over 38 years." Chiang Kaishek resumed the presidency on March I, 1950 in Taipei'" andestablished a stable and strong leadership which lasted until the death ofPresident Chiang Ching-kuo in January 1988. To sharpen ourunderstanding of the operations of this authoritarian government, I call

6S In terms of administrative districts, it includes two Provinces, Taiwan andFuchien which includes only three groups of strategic off-shore islands, and twoMetropolitan Municipalities, Taipei and Kaohsiung. Hierarchically, there are 16counties (Hsien) and 5 provincial municipalities under the jurisdiction of TaiwanProvince; and a total number of 309 villages, towns, county municipalities, andboroughs subordinate to the county and provincial municipality governments.

66 The proclamation was made by the top military official then in Taiwanaccording to § 3, Martial Law (1948). The proclamation was confirmed by theLegislative Yuan on March 14, 1950. See id. §§ 1&3.

67 Behind the concepts of"etat de siege" and "martial law", there aredifferent attitudes toward the origin of emergency powers. The etat de siege incivil law countries is regarded as an emergency measure to be employed againstany threat to public safety and order; martial law in common law countriesemphasizes the suspension of the rule of law (especially the writ of habeascorpus). Consequently, a prerequisite for imposing martial law in the UnitedStates would be either that the civilian courts were closed or that they could nolonger function properly. See Warren, Spies, and the Power o/Congress to SubjectCertain Classes o/Civilians to Trial by Military Tribunal, 53 AM. L. REv. 195,201

(1919); R. RANKIN, WHEN CIVIL LA W FAILS 181-184 (1939). This condition doesnot apply to a state of siege, under which the civilian courts may still functionwhile the jurisdiction of military courts would be expanded. Another majordifference is that the executive and/or the legislative branch in civil law countrieswould have the final say as to whether an emergency exists or has ended, whilethe courts assume this function under the common law.

.. Chiang Kai-shek was the president of the Republic of China by the 1st

National Assembly in April, 1948. When the KMT was thwarted in the civil warby the Communists on the Mainland, Chiang suffered severe criticism and steppeddown from the Presidency on Jan. 21,1949. Vice President Li Tsung-jen, who wasthe acting-President during Chiang's resignation, flew to the U.S. when theChinese Mainland fell into the hands of Communists in December 1949.

94 Constitutional Reforms in Taiwan in the1990s

this the era of "constitutional tutelage."

"Tutelage" hecause during this time the government actively fosteredthe people's ability to make their own judgments/decisions in localpolitics while remaining reluctant to confer upon them full constitutionalrights in central politics. Therefore, the declaration of a state of siege didnot interfere with the local elections. With the exception of the governorof Taiwan Province and the mayors of Taipei and KaohsiungMetropolitan Municipalities, who were appointed by the Executive Yuan,all county magistrates and mayors and members of local legislativeassemblies have been elected by direct vote of the people every four yearssince 1951." On the other hand, there existed subtle controls, primarilyvia administrative orders based on martial law, in every politicallysensitive area, such as a ban on organizing new political parties.70 It is a"constitutional" tutelage as the hat de siege was announced inconformance with constitutional procedure. In addition, as theConstitution was regarded as the country's most precious political asset inthe continuing struggle against the Communist regime, the KMTgovernment was reluctant to revoke the Constitution of 1947 and chose toenact and revise the "Temporary Provisions." Based on political andeconomic development concerns, the ROC has maintained a civiliangovernment in Taiwan since 1949.

IT.1 Initial Crisis and Origin of "Millenium

Congress"

69 The local self-governance was based upon a series of administrativeorders promulgated by the Executive Yuan, such as the "Fundamentals forImplementing Local Self-Governance in the Counties of Taiwan Province." The"Fundamentals" differ from the previously proposed "General Principles" mainlyin that, under the former, a governor of a province would be appointed by theExecutive Yuan, rather than being elected by popular vote.

10 See DENNIS T. TANG, ON THE FEASIBILITY OF ECONOMIC INCENTIVES IN

TAIWAN'S ENVIRONMENTAL REGULATIONS: LESSONS FROM THE AMERICAN

EXPERIENCE 301-310 (Academia Sinica: 1990) for details.

Constitutional Reforms in Taiwan in the1990s 95

By the time the tenure (of three years) for members of the 1m

Legislative Yuan expired on May 7, 1951, the Nationalist government ledby President Chiang Kai-shek had not succeeded in recovering theMainland. Yet the government was reluctant" to hold a general electionthat could take place only in the Taiwan area. As a solution, the ExecutiveYuan (Cabinet Meeting) passed a resolution requesting, with the approvalof the President, that the President acquire the consent of the LegislativeYuan for extending the service of its members by I year. The service formembers of the Legislative Yuan was so extended in 1952 and again in1953 72 In light of the fact that the 2" tenure of the LY members, as wellas the 1" tenure of both the National Assembly members and the ControlYuan members were all expiring, the Executive Yuan applied to the thennewly resumed Council of Grand Justices for a "constitutioninterpretation" in January 1954. On Jan. 29, 1954 the Council of GrandJustices rendered Interpretation No. 31 which held the following:

Article 65 of the Constitution stipulates that members ofthe Legislative Yuan shall serve a term of three years;Article 93 of the Constitution stipulates that members ofthe Control Yuan shall serve a term of six years. Theseterms originally should last for a period starting from theinauguration day until the end of the period prescribed inthe Constitution. However, presently, the country is facinga vital disaster, and it is impossible, lawfully, to hold anelection for the members of the next term. Were theLegislative Yuan and Control Yuan left non-functioning,the constitutional purpose for establishing five Yuans(branches) would be violated. Therefore, before themembers of a second term can be lawfully elected andconvened, the first-term members ofthe Legislative Yuan

71 Most members of these three representative bodies had followed ChiangKai-shek to Taiwan. It was believed that these representatives had a strongpolitical appeal to the people of Mainland. More importantly, as the governmentlost control of the Chinese mainland, a general election in accordance with theapportionment provisions (Art. 26, 64 & 91) of the Constitution has beenimpossible.

72 Attachment to Interpretation No. 31 (Application Message submitted bythe Executive Yuan). See JUDICIAL YUAN, COMPILATION OF INTERPRETATIONS BY

THE COUNCIL OF GRAND JUSTICES 55-56 (August 1991).

96 Constitutional Refonns in Taiwan in the 19905

and Control Yuan should continue to exercise theirduties (Emphasis added).

As a result of this Intetpretation, the de facto tenns of the membersof the Legislative Yuan and the Control Yuan elected in 1947 wereindefinitely extended. This is the origin of the so-called "MilleniumCongress."

11.2 Constitutional Structure under "Temporary

Provisions": Semi-Presidentialism

In order to "crush the rebel while maintammg the constitutionalframework", the Temporary Provisions chose to leave the text of theConstitution of 1947 untouched while supplementing amendments to"freeze" some of the original provisions. The high points of theTemporary Provisions, as latest revised in 1972, can be summarized asfollows.

1. Emergency Measures. The Temporal Provisions authorized thePresident to take, during the period of Communist Rebellion, "by aresolution of the Executive Yuan, emergency measures to avert imminentdanger to the security of the nation or the people, or to cope with aserious financial or economic crisis, without being subject to therestrictions prescribed in Articles 39 and 43 of the Constitution"." Theemergency measures may be modified or abrogated by the LegislativeYuan in accordance with the provisions of Article 57, Item 2 of theConstitution.

2. Fundamental Policies and Guidelines on National Mobilization

n Sec. I. Temporary Provisions.

This power was exercised only four times during 43 years (1948-1991). Forexample, at the end of 1978, in order to postpone the then imminent election ofmembers of the Legislative Yuan. when the U.S. government announced itsdecision to de-recognize the Republic of China in order to establish full diplomaticrelations with Communist China. The postponed election was held one year later.


and Rebellion Suppression. The Temporary Provisions authorized thePresident, during the period of Communist Rebellion, to set up an ad hocorganization to decide fundamental policies and guidelines on nationalmobilization and rebellion suppression." The National Security Counciland a subsidiary agency, the National Security Bureau, were establishedthereof. Each president of the five Yuans may be requested to attend themeeting of the Council."

3. Adjustment of Administrative and Personnel Agencies. TheTemporary Provisions also authorized the President to "makereadjustment in the administrative and personnel agencies of the centralgovernment and their organizations to meet the needs of nationalmobilization and Rebellion Suppression."" As a result, a substantial partof the Examination Yuan's power was transferred to the newlyestablished Personnel Administration Bureau under the Executive Yuan.

4. Electoral Measures for the Additional Representatives. In orderto ease the political stagnation resulting from the "milleniurn congress"and to meet the rising demand of political participation, the TemporaryProvisions authorized the President to promulgate measures (regulations)governing the election of additional representatives to the centralparliamentary bodies without being subject to the provisions of Articles26, 64 and 91 of the Constitution." Although the number of additionalrepresentatives has substantially expanded since 1972 and the number of"senior" representatives elected in 1947 has declined sharply, only afterthe election of 1989, did new members in the LY become a dominantforce. [Table 3] shows the evolution.

Leaving the original "modified parliamentary system", embodied inarticle 57 of the Constitution unchanged, the authorization of "laying

14 Sec. 4, Temporary Provisions.

15 § 6, Organic Ordinance of the National Security Council.

16 Sec. 5, Temporary Provisions.

n Id. Art. 6. Articles 26, 64 and 91 of the Constitution are provisions aboutthe delegates appropriations in the National Assembly, Legislative Yuan, andControl Yuan.


down the fundamental policies/guidelines" enabled the President, thehead of state, to share at least specific executive power with the Premier,the president of the Executive Yuan. A dual authority structure wasthereby created. In addition, the authorization of "making readjustment ofadministrative and personnel agencies" and "promulgating regulations forthe election of additional representatives" invented a room of "rule bydecree". It seems fair to conclude that the Temporary Provisionstransformed the modified parliamentary system embodied in theConstitution into a semi-presidential system."

11.3 Turning Crisis to Aspiration

Despite the "supplementary" elections held since 1969, thelegitimacy of government arising from the not-re-elected "milleniumcongress" has been questioned more and more seriously. After theenactment of the Voluntary Severance Act for the Senior CentralRepresentatives in January 1989 failed to "bribe" (with affluent severancepay) the "millenium congressmen" to step down as scheduled, 79 anunprecedented large-scale student hunger strike was held at the ChiangKai-shek Memorial in March 1990. On March 21, 1990 immediately afterbeing elected by the National Assembly as the 8th President of the .Republic, President Lee Teng-hui announced his intention to summon aNational Affairs Conference to solicit views on constitutional reform. OnApril 3, 1990 the Legislative Yuan passed a resolution applying forinterpretation by the Council of Grand Justices.

On June 21, 1990, a week before the scheduled opening of theNational Affairs Conference, the Council of Grand Justices rendered its

78 See GIOVANNI SARTORI, COMPARATIVE CONSTITUTIONAL ENGINEERING:

AN INQUIRY INTO STRUCTURES, INCENTIVES AND OUTCOMES 132-135 (1994) forproperties or characteristics of semi-presidentialism.

79 Many refused to step down as they asserted they represented the ROC'slegitimate claim of sovereignty over the Mainland.

Constitutional Refonns in Taiwan in the I 990s 99

Interpretation No. 261, which held the following:'·

The terms of central representatives are clearlystipulated by the Constitution. The first-term centralrepresentatives could not be reelected due to the vitaldisaster faced by this country after their lawfulinaugurations, and their continuing exercise of duties asa result was requisite for the maintenance of theconstitutional system. However, periodic reelections area necessary means to reflect the people's will and tofully carry out a democratic constitutionalism. NeitherInterpretation No. 31 rendered by this Council, nor theprovisions of Article 28, Section 2 of the Constitution",nor Articles 6 Sections 2 & 3 of the TemporaryProvisions" was ever intended to have the flrst-termcentral representatives continue exercising dutiesindeflnitely, or to alter their tenure, or to prohibit thegovernment from holding an election for the secondterm central representatives. In fact, the centralgovernment has, since 1969, held general elections forcentral representatives in free China to supplementcentral representative agencys step by step. In order todeal with the present circumstances, the first-term

80 See JUDICIAL YUAN, COMPILATION OF INTERPRETATIONS BY THE COUNCIL

OF GRAND JUSTICES, SUPPLEMENT VOL. V., 96-100 (August 1991).

81 Art. 28, Sec. 2 of the Constitution reads:

The term of office of the delegates to each National Assembly shall

terminate on the day on which the next National Assembly convenes.

82 Art. 6, Sec. 2 & 3 read:

2. The original representatives of the central parliamentary bodies have allbeen duly elected by the people in a nation-wide election and have exercised theirfunctions and powers according to law. So do those representatives of the samebodies later elected in by·elections either through a subsequent increase in thenumber of representatives or to fill vacancies created by deaths.

In areas on the mainland, as they are recovered, there shall be held elections,in one area after another, of representatives of the central parliamentary bodies.

3. Representatives of the central parliamentary bodies to be added andelected shall exercise the same functions and powers as the originalrepresentatives.

100 Constitutional Reforms in Taiwan in thel990s

central representatives who have not been re-electedperiodically and are either in fact not able to exercisetheir duties or are often absent from duties should beverified and dismissed immediately. In addition, the restof such representatives should stop exercising theirduties by December 31, 1991. In addition, the centralgovernment should, in accordance with the spirit of theConstitution, the intention of this Interpretation, and therelevant statutes and ordinances, hold timely nationalelections for the second-term central representatives, sothat the function of this constitutional system can beinsured. (Emphasis added)

This Interpretation not only concluded the "millenium congress" atone stroke", also led the way to constitutional reform by suggesting, in its"text of reasoning", that a certain number of seats in the forthcominggeneral elections shall be determined by one nationwide constituency.Since 1991 the amendments to the Constitution have adopted a formulafor proportional representation to allocate the seats allotted for thenationwide constituency."

III. Constitutional Transformation since 1990

The constitutional framework, or the "structure of the centralgovemment", has been the focus of the series of "ConstitutionalReforms" since 1990.

IJ There were 612 members of the National Assembly, 138 members of theLegislative Yuan, and 18 Control Yuan members when the ruling was announced.See FREE CHINA J., Vol. VII No. 47, p. I (June 25,1990).

... See, e.g., Article I, Section 2 of the Additional Articles of the Constitutionof 1997.

Constitutional Refonns in Taiwan in the 1990s 101

ID.1 1st Constitutional Reform: Additional Articles

of 1991

Under the guiding principle of "One Organ, Two Stages"", the ROClaunched its first effort in reforming the constitution. In April 1991 a totalof 10 articles officially known as the Additional Articles of theConstitution of the Republic of China (hereinafter "Additional Articles")were passed by the National Assembly.

The most imperative mission for these first-batch amendments is topave the way for a general election of the three representative bodies atthe central government as the "millenium congress" would soon bedismissed. Articles I to 3 thus re-allocate the seats for the NationalAssembly, Legislative Yuan and Control Yuan to be elected in Taiwanarea respectively, so that Articles 26, 64 and 91 of the Constitution willno longer be applicable. Article 4 of the Additional Articles expresslyprescribes that the members representing Chinese citizens residing abroad(so-called "overseas Chinese") and those representing the nation-wideconstituency shall be elected by way of party-list proportionalrepresentation.86

In addition, the Additional Articles following the precedent of theTemporary Provisions save the power for the President to "establish the

85 It is a procedural, rather than substantive, principle. "One organ" meansthe forthcoming "Constitutional Reform" engineering shall be conducted by theNational Assembly only. It is so decided because, as mentioned earlier, theAssembly monopolizes the power to amend the Constitution. "Two stages"means that the reform engineering shall be completed in two stages. It is sobecause the desperately needed general election of I<congress" can only berealized by amending the Constitution to get rid of the binds of Articles 26, 64and 91. Yet this initial reform can only be completed by the pI NationalAssembly which was overwhelmingly composed of "senior" members (more than90%). As to more dramatic and substantial changes, these shall be reserved forthose elected to the 2nd Assembly.

86 In addition, Article 5 of the Additional Articles deals with the technicalissue of connecting the tenure of various representatives of these threerepresentative bodies.

102 Constitutional Reforms in Taiwan in the 1990s

National Security Council and its subsidiary organ, the National SecurityBureau, to decide on national security related fundamental policies andguidelines."" As explained above, such an authorization enables thePresident to share at least some executive power with the Premier, andthus created a dual authority structure. Even the President is not sopowerful as before under the Temporary Provisions because the power toadjust administrative and personnel agencie~ and to promulgateregulations for the election of additional representatives are no longerexistent. In sum, one shall conclude that the constitutional framework isstill a semi-presidential system under the Additional Articles of 1991.

111.2 2nd Constitutional Reform: Additional Articles

of 1992

The principle of "One Organ, Two Stages" presaged that there wouldbe a second run of constitutional reform. Yet what should be readjustedfurther? Many contended that the "five-powers structure" (separation ofpowers among five branches) should be given up, yet no consensusamong a requisite overwhelming majority was forged. Neither did thefervent debate of parliamentarism versus presidentialism. Some technicalbreak-through, instead of substantial settlement, was then desired.

As the previous indirect election of the members of Control Yuan bythe members of provincial and municipal councils, this has been widelycriticized as corruption. The 2'" National Assembly chose to takechanging the "method" by which members of Control Yuan weregenerated as the starting point of reform.

The Additional Articles passed in May 1992 contained a total of 8articles, numbered Articles II to 18, after those of 1991. Article 15,Section 2 cut the size of Control Yuan (CY) to a total of 29 members(including the president and vice president) and prescribed that "allmembers shall serve a term of 6 years and shall be nominated and, with

87 Art. 9, Sec. I, Additional Articles of 1991. Section 2 of the same Articlealso saves the Personnel Administration Bureau for the Executive Yuan.

Constitutional Reforms in Taiwan in the19905 103

the consent of National Assembly, appointed by the President." In thewake of such a change, the members of CY were no longerrepresentatives of the people." The consent power was quite naturallytransferred to National Assembly. The National Assembly not onlyacquired the power of consent originally possessed by the CY, namelyconsent for the nominees of president and vice president of Judicial Yuan,Grand Justices, as well as president, vice president and members ofExamination Yuan, and also the newly formulated consent for thenominees of members of Control Yuan." In order to exercise the consentpower, an extraordinary session of the National Assembly shall beconvened which is not subject to the restrictions imposed in Article 30 ofthe Constitution.'" The slumbering Assembly" was jolted awaken.

In return, the most crucial yet controversial change of theConstitutional Reform was hammered out. Article 12, Sec. I of theAdditional Articles prescribed that "[e]ffective from the 1996 election forthe ninth-term President and Vice President, the President ard VicePresident shall be elected by the entire electorate in the free area of theRepublic." As a tentative compromise92

, the wording "the entireelectorate" indeed involved, at least, two assertions: "direct vote viadelegates" or "direct vote by the people". Section 2 of the same Articlefurther provided that: "[t]he electoral method for the aforementionedelection shall be formulated according to the additional articles to theConstitution at an extraordinary session of the National Assembly to beconvoked by the President by May 20, 1995." Despite the change ofelectoral method for the President, the National Assembly retains thepower to recall, and the Control Yuan retains the power to impeach, the

81 Art. 15, Sec. 6 of the Additional Articles prescribed: "Members of theControl Yuan must be beyond party affiliation and independently exercise theirpowers and discharge their duties in accordance with the law."

" Art. 11, Sec. 1, Additional Article of 1992.

90 Art. II, Sec. 2, Additional Article of 1992.

9\ See supra p.

92 See Chung-hai Sau, The Background and Erolution o/the AdditionalArticles concerning the "Electoral Method o/the President", 23 (3) THECONSTITUTIONAL REVtEW 50 (Jan. 1998) for details.

104 Constitutional Reforms in Taiwan in the I990s

President."

Another important move adopted in the Additional Articles was the"institutionalization" of local self-governance. As explained earlier, thelocal self-governance implemented until then had been experimental.Article 17 of the Additional Articles mandated that appropriate laws shallbe enacted to ensure that the legislative power entrusted by theConstitution to the province and county shall be exercised by theprovincial assembly and county assembly respectively, and that theprovincial governor and county magistrate shall be elected by the peopleof each province and county respectively. Because, since 1949, theROC's jurisdiction, in terms of population and area, has substantiallyoverlapped with those of the Taiwan Province, a popularly electedGovernor may result in "Yelsin effects". In December 1994, the first (andlast) popularly elected Governor of Taiwan was elected.

Lastly, the Additional Articles further delineated the powers betweenthe Executive Yuan and Examination Yuan."

93 Art. 12, Sec. 4, Additional Articles of 1992 reads as follow:

Recall of the President and the Vice President shall be executed inaccordance with the following provisions:

I. By a motion to recall put forward by one-fourth of all delegates to theNational Assembly, and passed with the concurrence of two-thirds of suchdelegates.

2. By a resolution to impeach adopted by the Control Yuan, and passed as aresolution to recall by two-thirds of all delegates to the National Assembly.

.. Art. 14, Sec. 1, Additional Articles of 1992 reads as follow:

The Examination Yuan shall be the highest examination body of the State,and shall be responsible for the following matters; and the provisions in Article83 of the Constitution shall not apply:

I. All examination-related matters;

2. All matters relating to the qualification screening, security of tenure,pecuniary aid in case of death, and retirement of civil servants; and

3. All legal matters relating to the employment, discharge, performanceevaluation, scale of salaries, promotion, transfer, commendation and award forcivil servants.

Conslitutional Reforms in Taiwan in thel990s 105

111.3 3rd Constitutional Reform: Additional Articles

of 1994

After two years of rivalry within the KMT party, the 2"" NationalAssembly launched the third wave of Constitutional Reform since 1990.The Additional Articles passed in late July 1994 contained a total of 10articles, yet the Additional Articles of 1991 and 1992 were completelyrepealed.

The most decisive move was the finalization of the electoral methodfor the President. Article 2, Section I, Sentence I of the AdditionalArticles unequivocally provided that "[tlhe President and Vice Presidentshall be directly elected by the entire populace of the free area of theRepublic of China." (emphasis added) The pait of the president and vicepresident candidates that receive the highest number of votes shall be thewinner of the presidential election."

The immediate impact of this "direct election" move fell on thecountersignature by the Premier, the president of the Executive Yuan.Article 2, Section 2 of the additional Articles curtailed the applicability ofcountersignature:

Presidential orders to appoint or remove from officepersonnel appointed with the consent of the NationalAssembly or Legislative Yuan in accordance with theConstitution do not require the countersignature of thePresident of the Executive Yuan. Article 37 of theConstitution shall nOl apply. (Emphasis added)

The above-quoted Section is problematic when scrutinized. Thepersonnel whose appointments must be consented to by the NationalAssembly, in accordance with the Constitution, include the president,vice president and Grand Justices of the Judicial Yuan, the president, vicepresident and members of the Examination Yuan, and the president, vicepresident and members of the Control Yuan. All of them shall "be beyond

"Art. 2, Sec. I, Sentence 4, Additional Articles of 1994.


party affiliation and independently exercise their powers and dischargetheir duties in accordance with the law"" and all serve for definitetenure." It is hardly imaginable that these personnel can be removed bythe President at will. So the removal order in the above Section mustmean either the Premier (the president of the Executive Yuan)" or theAuditor General.99 However it cannot be the second, as the Grand Justiceshave, in Interpretation No. 357,'00 rejected such a possibility. Thus thiswas the first time that the ROC constitution implied that the Presidentcould remove the Premier. But then how can the Executive Yuan still beresponsible to the Legislative Yuan, as Article 57 of the Constitutionclearly mandated?

A subtle answer is buried in Article 2, Section 3 of the AdditionalArticles. It says that "[0]rders to remove the President of the ExecutiveYuan from office shall take effect after the new nominee to this office hasbeen confinned by the legislative Yuan." This is indeed a copy of Germankonstruktives MifJtrauensvotum,ol. Putting the question of the necessity ofsuch a protective mechanism under the "modified parliamentary system"aside, the normal way to introduce konstruktives MifJtrauensvotum should

96 See Art. 80 & 88 of the Cons~itution; Art. 6, Sec. 6 of the AdditionalArticles of 1994.

97 See Sec. 5, Subsec. 2 of the Organic Act of the Judicial Yuan of 1992 (9years per term for Grand Justices); Sec. 5, Subsec. I of the Organic Act of theExamination Yuan (6 years per term for members of Examination Yuan); Art. 6,Sec. 2 of the Additional Articles of 1994.

9S Art. 55, Sec. 1 of the Constitution: "The President of the Executive yuan

shall be nominated, and with the consent of the Legislative Yuan, appointed bythe President of the Republic.

99 Art. 104 of the Const.: "In the Control Yuan, there shall be an Auditor

General who shall be nominated and, with the consent of the Legislative Yuan,appointed by the President of the Republic."

100 JUDICIAL YUAN, COMPILATION OF INTERPRETATIONS BY THE COUNCIL OF

GRAND JUSTICES, SUPPLEMENT VOL. VIII, 212 (June 1995). See also Dennis Tang,

A Critical Review ofthe Council ofGrand Justices' interpretations oftheSeparation-ol-Powers Doctrine, in DENNIS T. TANG, SEPARATION OF POWERS

REVIStTED 127,204-206 (1998) for comments.

101 Art. 67, GG.

ConstilUlional Refonns in Taiwan in thel990s 107

be a reVISIon to, or restriction on, Article 57 of the Constitution. Thesmuggling of such a removal power of the President by the two citedSections is just an indication of the fierce battle between presidentialismand parliamentarism.

Another immediate impact of the shift of electoral method for thePresident was the further "liberalization" of the National Assembly.Article 1, Section 7 of the Additional Articles authorized the Assembly toset up beginning with the 3"' Assembly a speaker and a deputy speaker tobe elected by the members among themselves and to represent theAssembly and to preside over its meetings. Furthermore, Section 8 of thesame article allowed the Assembly to govern itself by conferring it withthe power to determine its own procedures. 102 An autonomous and activeNational Assembly has exposed the inherent danger in the monopoly ofconstitutional revision.

IlIA 4th Constitutional Reform: Additional Articles

of 1997

While the KMT won in the first popular election for the Presidencyin March 1996, it lost the overwhelming majority possessed before,103 arequisite for dominating the constitutional amendment, in the NationalAssembly. Some coalition between KMT and DPP was thereforenecessary to push forward the 4'" run of Constitutional Reform. An ad

hoc consultative meeting, the National Development Conference, wasconvened in late December 1996 to nurture consensus. The major focustherein were:(I) further adjustment of the triangle relationship among the President, the

Premier and the LY; and(2) review of the necessity of the various levels of government in Taiwan

102 This means that Article 34 of the Constitution shall no longer apply.

103 The ruling KMT party retained a dominant majority (79% seats backedwith 71 % VOles) in Ihe Nalional Assembly election of 1991. It won only 54%seats in the National Assembly in 1996, while DPP won 30% seats therein.


area.

In July 1997 the 3"' National Assembly passed the Additional Articlesof a total of II articles to replace the Additional Articles of 1994. Theauthor believes that after the series of critical changes, the up to thensemi-presidentialism was transformed into a "presidentialism yet with asemi-presidentialism outlook."

Specifically, Article 3, Section I of the Additional Articles for thefirst time empowers, by ceasing the force of Article 55, Section I of theConstitution, the President to appoint the Premier without being subjectto approval by the LY. Taking this with the equivocal removal powerinherited from the Additional Articles of 1994, the President has firmlyobtained absolute control over the Premier. Though the heading of Article3, Section 2 still maintained that "the Executive Yuan shall be responsibleto the Legislative Yuan in accordance with the following provisions", itreally means "the Executive Yuan shall be subject to the checks of theLegislative Yuan in accordance with the following provisions".

The modified parliamentary system is further modified in two keyaspects. First, Article 3, Section 2, Clause 2 replaces Article 57, Section I,Clause 3 with the following:

If the Executive Yuan deems a resolution on a statutory,budgetary, or treaty bill passed by the Legislative Yuandifficult of execution, it may, with the approval of thePresident of the Republic and within ten days after itstransmission to the Executive Yuan, request theLegislative Yuan to reconsider the resolution. TheLegislative Yuan shall, within fifteen days upon the arrivalof the request of reconsideration, make a resolution. If theLegislative Yuan is out of session upon the arrival of suchrequest, the Legislative Yuan shall resume sessionvoluntary and make a resolution within fifteen days afterthe resumption of session. The original resolution of theLegislative Yuan shall be void if the Legislative Yuan failsto make a resolution on the request of the reconsiderationwithin the time-period specified above. If afterreconsideration, one-half of the total Members of theLegislative Yuan uphold the original resolution, the


Premier must accept the same. (Emphasis added)

In a parliamentary system, such a request of reconsiderationis a request of "vote of confidence" proposed by the cabinet. If thecabinet fails in such a vote, the Premier shall either step down ordissolve the parliament for re-election to look into the will of thepeople. The above-cited Section of the Additional Articlesmandates a defeated Premier accept the original resolution of theLegislative Yuan, instead of resign. It can only be understoodfrom the viewpoint of a presidential system, that is, the Premier isbeing only responsible to the President, as the Premier wasappointed, and may only be removed, by the President.

Second, Article 3, Section 2, Clause 3 replaces Article 57,Section I, Clause 2 with the following:

With the signarures of more than one-third of the totalnumber of Legislative Yuan members, the LegislativeYuan may propose a no-confidence vote against thepresident of the Executive Yuan. Seventy-two hours afterthe no-confidence motion is made, an open-ballot voteshall be taken within 48 hours. Should more than one-halfof the total number of Legislative Yuan members approvethe motion, the president of the Executive Yuan shalltender his resignation within ten days, and at the sametime may request that the president dissolve the LegislativeYuan. Should the no-confidence motion fail, theLegislative Yuan may not initiate another no-confidencemotion against the same president of the Executive Yuanwithin one year. (Emphasis added)

On the surface, the adoption of "no-confidencevote" replacing the "policy change request" and the loweringdown of the voting threshold seems to improve the accountabilityand therefore the efficiency of the government. Yet there is nomechanism assuring that the President will appoint a new Premierwho will be "responsible" to the will of the Legislative Yuan.Without such a guarantee, one can not help but doubt what willpersuade the legislators to risk their seat by initiating a vote of no


confidence. Why not just block or boycott the important bills orbudget proposed by the Premier? For these reasons, the vote of noconfidence cannot constitute a real threat to the Premier.

In response to the power of the President to dissolve the LYupon the request by the Premier, the Additional Articles equip theLegislative Yuan for the first time with the power to impeach thePresident. Given the fact that the causes for impeachment are verylimited,''' and that even the Legislative Yuan passes the resolutionof impeachment by a special majority,los it is the NationalAssembly that has the final say, after trial, on if the President shallbe dismissed,l06 the impeachment is not an effective mechanism toprevent the possible deadlock between the President and theLegislative Yuan.

In sum, the absolute power to appoint and remove the Premierheld by the President has "hollowed" the function ofcountersignature by the Premier, and transformed a semipresidential system under which the President and the Premierhorizontally share executive power, into a substantial presidentialsystem under which the President vertically directs the Premier onexecutive matters.

Another explosive move taken by the Additional Articles is to

104 Art.4, Sec 5. Additional Articles of 1997 reads:

Impeachment of the president or the vice president by the Legislative Yuanfor treason or rebellion shall be initiated upon the proposal of more than one-halfoftotal members of the Legislative Yuan and passed by more than two·thirds ofall such members, whereupon it shall be submitted to the National Assembly. Theprovisions of Article 90 and Article 100 of the Constitution and Article 7.Paragraph I of the Additional Articles of the Constitution shall not apply.(Emphasis added)

lOS Art. 4, Sec. 6 of the Additional Articles of 1997 requires more than threefifths of the total members of the Legislative Yuan to propose and an accord ofmore than two-thirds of the total members of the LY to pass a resolution forimpeachment.

". See Art. 2, Sec. 10, Additional Articles of 1997.

Constitutional Reforms in Taiwan in the1990s 111

abolish the province as a level of government, popularly known as"minimization of the province." Starting December 1998, thegovernor of Taiwan Province will be appointed by the President, areturn to the practice prior to December 1994. A series ofreengineering of government re-organization has just begun.Facing these rapid changes, one is justified in believing that theshift of direct election of the Governor is just a transitory steptowards the direct election of the President.

IV. Review and Prospect

Sensitive readers might wonder what we should learn from theTaiwanese experience. As a witness and even an active participant in theReforms, I have culled the following lessons.

IV.I Direct Election ofthe President Has an

Enormous Impact on Constitutional

Framework

Reviewing the whole process of the Constitutional Reform since1990 ex post, I do not hesitate to point out that the shift of the electoralmethod for the President from indirect election by the members of theNational Assembly to direct election by the people is the most crucialmove, though, in theory, such a shift cannot alone determine the overallstructure of a constitution. For example, Austria, Iceland and Ireland hadrecourse to a direct popular election of their presidents and yet arecommonly regarded parliarnentarisms, or at most facadepresidentialisms. 107 However, in practice one should never underestimatethe potential impact or implication of such a shiftlO' The shift of the ROC

101 G. Sartori, supra note?, at 83.

101 Many, including myself, who advocated the direct election simplyrejected the dual character of the members of the National Assembly. While


Constitution from a modified parliamentarism to a substantialpresidentialism due to the shift of the electoral method for the President isjust an example.

The Taiwanese example, of course, does not mean that shouldanother country decide to shift the electoral method for her president, itwill witness the same shift in her constitutional framework. I tend tobelieve, however, that should another country possesses a tradition orreality of "leader worship ", it is very likely that the shift of electoralmethodfor the president will result in a shift to presidentialism.

There are several reasons why such an interaction between these two"shifts" occurred in Taiwan. First, the tradition of Chinese emperor is sodeeply imbedded in people's minds that anyone who serves the presidentor the head of state, will quite naturally enjoy the most prestige. Such animage/expectation did not decrease during the authoritarian rule of thetwo Presidents Chiang. Second, facing strong pre.ssure from theCommunists and a tough international situation, the people of Taiwan aresearching for strong leadership. These might explain why the 1~Constitutional Reform allowed the president tei maintain the power oflaying down national security fundamentals, opting for a semipresidential system, instead of completely repealing the TemporaryProvisions, settling for a modified parliamentary system, instead ofsimply resuming the Constitution.

Thirdly, as Ian Budge remarked, "democracy has an irresistible allurefor populations whose freedoms have been restricted and aspirationssubordinated to some distant goal prescribed by regime ideology."I09 TheTaiwanese citizens under authoritarianism have long demanded for more

serving as pure delegates of the people, like the Electoral College in the U.S., inelecting the President (and Vice President). they are entitled to exercise otherpowers, including the monopolistic power of constitutional amendment,according to their own will. Many of these direct-election advocates did not, inthe original debate, support a shift to presidentialism.

See, e.g., Dennis Tang, The President Ought to be Directly Elected by thePeople, SELF-INDEPENDENCE NIGHTLY NEWS, August 8 & 9, 1991.

'" IAN BUDGE, THE NEW CHALLENGE OF DIRECT DEMOCRACY 6 (1996).

Constitutional Refonns in Taiwan in the1990s 113

political participation. Popular election of the President can best meetsuch a demand.

Finally and sadly, the shift of constitutional framework may also beattributed to lack of deliberation! The lack of deliberation may in turn beattributed to the "strategy" of conducting Constitutional Reform, as wellas the "unconsciousness" of the people. In terms of "strategy", the rulingKMT party has been focusing on various technical issues, such as"reform of the electoral method", "adjustment of countersignature",without exploring the "substantive meaning or substantial implication" ofeach of the constitutional amendments. Consequently few can elucidatewhy such a shift of constitutional structure is warranted. Moreover, thePeople on Taiwan, coming out of years of Japanese colonial rule followedby years of Nationalist authoritarian rule, were understandably notfamiliar with constitutional thinking. Therefore, we should not rush to theconclusion that such a shift was a conscious choice of the people.

After years of intensive revisions of the Constitution, the benefit ofpopulist appeal appears to be declining. Many, or perhaps most, citizenshave become indifferent, barely reacting to President Lee's recentannouncement"O that there will be a 5th Constitutional Reform.

IV.2 Abrogation of Taiwan Province in the Wake of

Popular Election of the Governor Has

Perplexed the Government Reorganization

For years, constitutional scholars on Taiwan have criticized the "fivepower structure" of the central government created by the Constitution asawkward and infeasible, and yet ignored the thorny problem of theinstitutional relationship between the central and local governments.

It seems fair to say that since the very beginning the "local selfgovernance" on Taiwan has been an experimental field of constitutional

110 See THE FREE CHINA JOURNAL, Vol. XV, No. 50 (December 18, 1998).

114 Constitutional Refonns in Taiwan in lhe 19905

tutelage. Leaving the Fuchien Province aside which includes only threegroups of strategic off-shore islands, the ROC government since 1949has effectively governed only Taiwan Province and two MetropolitanMunicipalities, Taipei and Kaohsiung. The territorial jurisdiction of theTaiwan Province was divided into a total of 21 counties/provincial cities,a sharp increase compared to those under the previous Japanese rule. Theterritorial jurisdiction under the 16 counties (Hsien) was further dividedinto a total of 309 villages, towns, and county municipalities. With theexception of the Governor of Taiwan Province and the Mayors of Taipeiand Kaohsiung Metropolitan Municipalities, all members of the TaiwanProvincial Assembly, Taipei City Council and Kaohsiung City Council,and all county magistrates and (provincial) city mayors and members ofcounty/city Council, and all heads of villages/towns/(county) cities andmembers of village/town/city councils have been popularly elected by thepeople every four years. A three-layer structure of local government hasthereby been shaped.

Such an intensive participation in local politics seems inevitable inorder to compensate for the stagnation arising from the "milleniumcongress" at the central level. As late as 1991 when the "milleniumcongress" dissolved, however, the need for government reorganizationhas become apparent. Do we really need four overlapping levels ofgovernment on an island state?

Unfortunately, the Additional Articles of 1992 failed to initiate timelygovernment reorganization. Instead, Article 17 of those AdditionalArticles decided to "institutionalize" local self-governance by enablingthe popular election of the Taiwan Governor. Before the expiration of thefour-year term of the first popularly elected Govemor, the AdditionalArticles of 1997 moved to "minimize" the Taiwan Province, substantiallyabrogating it as a level of government. People became confused. If theProvince is to be abrogated, why should there first be a shift of theelectoral method for the Governor to popular election? Though a powerstruggle within the ruling party might explain why the shift of electoralmethod of the Governor preceded that of the President, one has to confessthat the abrogation of the Taiwan Province immediately after the popularelection of the Governor has complicated move towards governmentreorganization.

Constitutional Reforms in Taiwan in the 1990s liS

In my opinion, the abrogation ofvillage/town/(county) city as a levelof government, as proposed in the National Development Conferenceheld in December 1996, is probably the most urgent, yet troublesome,move to be taken in light of the endemic corruption and faction problemsin politics. Another imperative reform is to clarify as detailed andinnovative as possible the subject-matter of the separation of jurisdictionbetween the central government and (metropolitan)municipalities/counties. The current legislative mode'" which prescribesthat "[t]he term "Responsible Agency" as used in this Act refers to "A" atthe central government level, "B" at the provincial/municipal governmentlevel, and "c" at the county/city government level", yet withoutspecifying which matter belongs to which government, simply does notwork!

IV.3 Direct Democracy as A Solution to

Constitutional Monopoly is Worth a Try

On December 11, 1998 President Lee Teng-hui urged the NationalAssembly to gear up for the fifth round of constitutional revisions.'l2 Theissues to be addressed included whether to synchronize the elections ofthe President and the National Assembly members by extending bothterms through 2001, adjust the relationship between the Legislative Yuanand the National Assembly, as well as institute plebiscite. The proposalsunder study by a nine-member task force within the Assembly includedan extension of LY members' term to four years and the granting to theAssembly the power to review its own budget and pass its own OrganicAct.

Sensitive readers might have ascertained that these proposals shared

III See, e.g., § 3, Water Pollution Control Act. The English translation madejointly by the author of this article and Richard 1. Ferris can be found athttp://w3.epa.gov.tw/epalaw/index.htm

112 See. e.g, The Free China Journal, Vol. XV, No. 50 (Dec. 18, 1998).

116 Constitutional Refonns in Taiwan in the1990s

the same trend of previous reforms--a steady expansion of powers of theNational Assembly. Behind such an expansion, as indicated earlier, is themonopoly of constitutional revisions, an inherent defect of theConstitution which needs to be corrected. The more evident expansion ofpowers by the National Assembly, the more likely will it irritate thepeople and result in constitutional crisis. It would be better to tackle thisproblem before it explodes.

The author suggests that President Lee take advantage of the forthcoming and possibly last round of Constitutional Reform falling withinhis term to merge the Legislative Yuan with the National Assembly into acongress of two houses with equal power and the same length of term,four years. There are three requirements in this reform package. First, thesynchronization proposal under study should enable the people to electmembers of National Assembly and Legislative Yuan, in turn, every twoyears,''' that is, the "congress" consisting of LY and NA shall have astaggered term. Second, in order to shape co-equal houses the "congress"shall exercise every power currently entrusted with the LY and NA in aunited conference (plenary session) consisting of all members of the LYand NA. Thirdly, as part of government reorganization effort, the size ofthe future "congress" shall be limited to 350 seats in total. To achieve thisgoal of downsizing, the seats of NA and LY shall be reduced, from thecurrent 325 and 225, to 175 each.

As soon as the congress is so reformed, people should be given thefinal say by plebiscite to any constitutional amendment proposed by"either house" of the "congress" and canfinned by "the other house" ofthe "congress". Though the special majority vote requirement by either"house" for proposing/confirming a constitutional. amendment may no

113 The current (41h) term of LY members will expire in January 2002 and the

election for the 51h LY will be held in December 2001. In addition, the current (3'd)term ofNA members will expire in May 2000 and the election for the 4th NA willbe held in March 2000. Specifically, the author suggests that the current term ofthe LY be extended by one year to January 2003 and the election for the 51b LYbe rescheduled in December 2002; the current term of the NA be extended by 8months to January 2001 and the election for the 4th NA be rescheduled inDecember 2000. The current term of the President shall also be extended by 8months to January 2001.


longer be necessary, I do insist that a proposed/pending amendment to theConstitution shall be publicly published for a reasonable time period, sayhalf a year, before the people exercise plebiscite. 114 The introduction ofplebiscite for constitutional amendments (and for constitutionalamendments only)l1s will ultimately correct the monopoly fault of theConstitution. The advantage of such a reform package is that it will attainmultiple goals, at the same time, with a minimum cost.

114 Cf Article 174, Item 2 (A proposed amendment to the Constitutionpassed by the Legislative Yuan shall be publicly published half a year before theNational Assembly convenes for referendum.)

In As to the possible declaration of independence, i.e., separation from

China permanently. by way of plebiscite shall be avoided at this moment becauseof the potential for disaster.


Table 1: Composition ofJudicial Review Decisions

~Total of Constitution Uniform Concrete Abstracl

OfInterpretation's Interpretation Interpretation Adjudication Interpretation

GrandRendered

Justices79

I". (lnlr. No.1 25 54 0 79(07/1 4/1948

-{)9/24/1958) -Intr. No. 79)

(JOO% \(31.65% ) (68.35% ) (0% ) (100% )

432"". (lntr. No. 80 8 35 0 43

(09/25/1958-10/0111967) -lnrr. No. 122)

(100% )(18.6% ) (81.4% ) (0% ) (100% )

243'd.

(lntr. No. 123 2 22 0 24(10/0211967

-10101/1976) -lntr. No. 146)

(J 0010: \(8.33% ) (91.67% ) (0% ) (100% )

534th

, (lntr. No. 147 32 21 26 27(10/02/1976

-10/01/1985) -lntr. No. 199)

(JOO% \(60.38% ) (39.62% ) (49.06% ) (50.94% )

1675th

. (lnlr. No. 200 149 18 135 32(10/0211985

-10/0111994) -Inlr. No. 365)(89.22% ) (10.78% ) (80.84% ) (19.16% )

(100% )

6". 113

(10/02/1994 (lnlr. No. 366 III 2 90 23

- ) -Imr. No.478)

(JOO% \(98.23% ) (1.77% ) (79.65% ) (20.35% )

Grand Sum 479 327 152 251 228(100% ) (68.27% ) (31.73% ) (52.40% ) (47.60% )

*AsofApril 1, 1999.


Table 2: Composition of Constitution Interpretations

Total of Human Rights Separation-of -PowersInterpretations Interpretations Interpretations

TermRendered

of Concrete Abstract Concrete Abstract

GrandAdjudi- Interpre- Adjudi- Interpre-cation tation cation tation

Justices

I". 79 0 3 0 23

(07114/1948 (lntr. No. I

-09/24/1958) -Intr. No. 79)

2"'. 43 0 2 0 6

(09/25/1958 (Intr. No. 80

-10101/1967) -Intr. No.122)

3"'. 24 0 I 0 I

(10/0211967 (Intr. No. 123

-10/01/1976) -Intr. No. 146)

4lh. 53 22 4 4 3

(1010211976 (Intr. No. 147

-10101/1985) -Intr. No. 199)

(100%) (84.62% ) (15.38% ) (57.14% ) (42.86% )

51h• 167 122 5 4 20

(10102/1985 (Intr. No. 200

-10101/1994) -Intr. No. 365)

(100%) (96.06% ) (3.94% ) (16.67% ) (83.33% )

6·. 113' 83 7 7 14

(10/02/1994 (Intr. No. 366

- ) -lntr. No. 478)

(100%) (92.22% ) (7.78% ) (33.33% ) (67.67% )

Grand Sum 479 227 24 15 67

(100%) (90.44% ) (9.56% ) (18.29% ) (81.71% )

·AsofAprill,1999.


Table 3: Composition ofCentral Representative BodiesofTaiwan around 1990

Members Chanoes of Members

Elected in Members Members Members MembersOrgan 1947 in Total elected in elected in elected in elected in

Mainland 1947 1969 1986 1989

NATIONAL 706]16ASSEMBLY 2953 (100 671 11 84

~ ) (95.04% ) (1.56% ) (11.90% )I

I ruJ' I II

651' 580 11 80(100 (89.09% ) (1.67% ) (12.29% )% )

LEGISLATI 294'VEYUAN 760 (100 188 6 101

% ) (63.95% ) (2.04% ) (34.35% )I

I [ill' II I

250' 115 6 129'(100 (46.00% ) (2.4% ) (51.6% )% )

CONTROL 67'YUAN 180 (100 21 2 32

% ) (31.34% ) (2.99% ) (47.76)I

I [j]' I II

49' 16 2 31(100 (32.65% ) (89.09% ) (67.23)% )

Source: Secretariat, National Assembly; Department of Accounting, Legislative Yuan;Office of Statistics, Control Yuan; FREE CHINA J., Vol. VII No. 47, p. 1 (June 25,1990).

116 As of February 10,1990. bAsofFebruary 11, 1989 .

• As of March 17, 1988. 6 As of June 25, 1990 .

• Originally, there were 130 Members elected in 1989. rAs of October 12, 1990.

constitutional reforms in taiwan in tbe1990s

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